No. 86-314 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRICHARD LEE TOME, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Judy Browning, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, 

Montana ; Steve Hagerman, Deputy County Atty. 

Submitted on Briefs: May 28, 1987 

Decided: September 17, 1987 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant Tome appeals a bench conviction for burglary 

and criminal mischief in the Eighth Judicial District, Cascade County. On April 11, 1986, Tome was sentenced to a 

prison term of ten years for burglary and ten years for 

criminal mischief, to run concurrently. Tome was also sentenced to ten years as a persistent felony offender, to run 

consecutively. 

Tome presents two issues for our review: 

1. Does substantial evidence support Tome ' s 

conviction? 

2. Did Tome receive effective assistance of counsel? 

In the early evening of March 27, 1985, the clubhouse 

of the Anaconda Hills Golf Course in Great Falls was forcibly 

entered. Money was taken from a cash register and a vending 

machine. Damage to the vending machine was $359, while the 

clubhouse received $191 worth of damage. 

The investigation by the Cascade County sheriff led to 

defendant Tome. On March 30, 1985, a deputy brought Tome to 

the sheriff's office where he was advised of his Miranda 

rights. Based on Tome's admissions and other witness interviews, Tome was charged with the crimes and arraigned on 

April 30, 1985. 

Issue 1 

Does substantial evidence support Tome's conviction? 

On March 18, 1986, the District Court found Tome guilty 

of burglary, as defined in S 45-6-204(1), MCA, and criminal 

mischief, a felony as defined in 5 45-6-101 (1) (a) , MCA. 

Tome contends that the only evidence supporting burglary is his oral admission, which he subsequently denied at 

trial. Tome asserts that the circumstantial evidence can be 
interpreted as supporting either guilt or innocence and was 

therefore insufficient to establish guilt beyond a reasonable 

doubt. 

Our standard of review on issues of substantial evidence is that a conviction cannot be overturned if the evidence, when viewed in a light most favorable to the 

prosecution, would allow a rational trier of fact to find the 

essential elements of the crime beyond a reasonable doubt. 

State v. Kutnyak (Mont. 1984), 685 P.2d 901, 910, 41 St.Rep. 

1277, 1289. 

Our review of the record convinces us that substantial 

evidence supports Tome's conviction. At trial, an employee of 

the Black Eagle Community Center testified that Tome was in 

the Center near the time of the break-in. The Center is 

located one block from the clubhouse, on the opposite side of 

the street. Tome attempted to buy some drinks but did not 

have enough money. Tome then left for about thirty minutes 

and returned with a "bunch of nickels and dimes." 

An employee of the golf course testified that he saw a 

car, which matched the description of Tome's car, parked 

outside the front gate of the golf course near the time of 

the break-in. Two deputies testified that Tome admitted to 

the burglary after being advised of his Miranda rights but 

prior to requesting an attorney. 

Tome further contends that the evidence does not support a conviction of criminal mischief because the only loss 

sustained by the city was the $191 damage to its clubhouse. 

Tome's contention fails. The vending machine was leased to 

the golf professional, who was an employee of the city. The 

machine was located on city property. The State properly 

introduced a repair bill for $359, which itemized the damage 

to the machine. The professional maintained possessory 

control of the machine and. was personally responsible for any 
repair costs. As we held in State v. Holmes (Mont. 1984), 

687 P.2d 662, 666, 41 St.Rep. 1535, 1539, mere possession of 

the property is sufficient to show ownership in a property 

crime. Section 45-2-101(46), MCA. 

In conclusion, the evidence in Tome's trial was primarily circumstantial, there being no witnesses to the actual 

burglary. When circumstantial evidence is susceptible to two 

interpretations, one which supports guilt and the other which 

supports innocence, the trier of fact determines which is the 

most reasonable. State v. Atlas (Mont. 1986), 728 P.2d 421, 

423, 43 St.Rep. 2042, 2044. Viewed in a light most favorable 

to the State, we hold that the evidence was reasonably interpreted and supports Tome's conviction of burglary and criminal mischief. 

Issue 2 

Did Tome receive effective assistance of counsel? 

Tome contends that he received ineffective assistance 

because defense counsel agreed to six continuances, waived a 

jury trial, did not call witnesses in support of Tome's 

alibi, and did not move to dismiss the criminal mischief 

charge because the vending machine was not city property as 

charged. 

We review issues of ineffective assistance of counsel 

under the standard of Strickland v. Washington (1984), 466 

U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693, 

which states: "First the defendant must show that counsel's 

performance was deficient. . . . Second, the defendant must 

show that the deficient performance prejudiced the defense. " 

In reviewing the record, we find that Tome has shown 

neither deficiency of performance nor deprivation of a fair 

trial. Tome alleges tactical errors but fails to show how 
these alleged errors reached the magnitude of deficient 

performance. 

Tome's first public defender requested four continuances, citing scheduling conflicts and continuing plea negotiations. Tome's second public defender requested another 

continuance to familiarize herself with Tome's case. Tome 

assented to these continuances as evidenced by his signing a 

waiver of speedy trial on February 21, 1986. Contrary to 

Tome's contentions, the continuances reflect the efforts of 

counsel to provide effective, not ineffective, assistance. 

Tome's waiver of a jury trial does not establish ineffective assistance of counsel. Tome's waiver of jury trial 

is evidenced by the written waiver filed by his counsel on 

June 24, 1985, nearly nine months before his trial. Tome had 

ample time prior to his trial to request that the waiver of 

jury trial be withdrawn. He elected to take his chance with 

a trial before the court as the trier of fact. NOW, after an 

adverse verdict, he wishes to claim the waiver as proof of 

ineffective assistance counsel. This we cannot permit. 

State v. McCartney (1978), 179 Mont. 49, 55-56, 585 P.2d 

1321, 1325. 

Counsel's decision to not call alibi witnesses was a 

prudent trial tactic. Prior to trial, Tome's sole alibi 

witness failed to support Tome's story. As we have held, the 

decision to call or not call witnesses is a matter of trial 

tactics and does not determine ineffective assistance. State 

v. Elliott (Mont. 1986), 717 P.2d 572, 575, 43 St.Rep. 723, 

726. 

Counsel's failure to object to the criminal mischief 

charge was reasonable. The criminal mischief charge adequately notified Tome of exactly which vending machine was 

damaged. The purpose of an information is to reasonably 

apprise the accused of the charges against him so that he has 
the opportunity to prepare and present his defense. State v. 

Matson (Mont. 1987), 736 P.2d 971, 975, 44 St.Rep. 874, 878. 

The criminal mischief information against Tome fulfilled that 

purpose. Any objection would have been impotent. We find 

that Tome was not misled by the charge or prejudiced by the 

lack of objection. 

Tome has failed to show that counsel's performance was 

deficient and prejudiced his defense. Allegations of ineffective assistance of counsel must be grounded on facts which 

appear in or are easily deduced from the record and which go 

beyond mere conclusory allegations. State v. Robbins (Mont. 

1985), 708 P.2d 227, 232, 42 St.Rep. 1440, 1444. We find 

that counsel exercised her professional judgment on matters 

of trial strategy. We hold that Tome received effective 

assistance of counsel. 

Affirmed. 

We concur: 

6" Chief Justice